Kagan Hearings: A Ho-Hum Affair?

Covering Supreme Court confirmation hearings used to be a highlight of my job. I looked forward to these historic events with delight -- and appreciated having a front-row (or close to it) seat. They were high drama involving big personalities -- the nominee and the senators -- and at stake were high-falutin' constitutional principles and legal policies. Each confirmation could practically be a Washington novel in itself. Sure, some more than others -- say, the Clarence Thomas morality play. Yet Elena Kagan's confirmation hearings, which open on Monday, have certainly not received tremendous pre-buzz. With the BP oil spill, economic troubles, Wall Street reform, the McChyrstal meltdown, and two wars under way, Kagan has not been a top priority in the news. It's hard to get jazzed about these hearings.

President Barack Obama's appointment of Kagan, the solicitor general and former dean of Harvard law school, has yet to spur much controversy or argument. Perhaps the most contentious issue to date has been her opposition at Harvard to allowing military recruiters to use the law school's career services office, due to the military's discriminatory policies regarding gays and lesbians. Some Republicans have tried to gin this up. On Sunday, Sen. John McCain (R-Ariz.) slammed Kagan's supposed "steadfast and zealous opposition to military recruiters, to the presence of military on the campus." Yet other GOP senators -- notably, Sen. Lindsey Graham of South Carolina and Sen. Scott Brown of Massachusetts -- have essentially declared this a non-issue.

Republicans and conservatives have also decried her lack of judicial experience -- a matter they didn't care about when William Rehnquist was appointed to the court. The anti-abortion groups predictably gripe she's not anti-abortion. There's nothing stop-the-presses about that. The key issue is that there aren't many issues because Kagan, as a non-judge, does not have a long judicial paper trail to pore over. There are tens of thousands of pages of records from her days as a midlevel Clinton White House policy official. But it's difficult to tell if all those memos and e-mails document her own opinions that might guide her future court decisions--or the political calculations derived by Kagan and her White House colleagues. In any event, none of these papers -- or anything else -- has yielded a "wise Latina"-like remark that could anchor a fierce line of attack.

It seems that Kagan is a non-raging liberal. That's not enough to fire up conservatives or liberals. Consequently, there's not much of a political fight at hand. She's certainly no substitute for the fiery Justice John Paul Stevens, the progressive champion whose seat she will take if confirmed. (Civil rights groups are wary of her; abortion rights advocates seem happy about her appointment.) Kagan would be the fourth woman to serve on the court -- a notable fact, but not so newsworthy. Ultimately, the hearings are important only because the appointment of any new justice is important. But with so much other important stuff occurring, these hearings have a not-such-a-big-deal atmosphere. No doubt, GOPers will try to ignite some fireworks on abortion and gun rights. But a Fourth of July spectacle is not expected.

Still, Supreme Court confirmation hearings can yield crystallizing moments encapsulating the great debating points of American history. One such exchange came in 2005, during the hearings for Chief Justice John Roberts Jr. In his opening testimony, Roberts declared,

Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

Roberts was trying to depict himself as a prudent and modest jurist, not a conservative firebrand who would be a right-wing activist on the court. (To see how that turned out, see the Citizens United decision.) His simple analogy seemed ... well, so simple: judges only had to call pitches. While there might be some room for argument regarding close calls (on the edge of the plate or outside?), judging, Roberts was saying, was a rather by-the-book process -- and there was no reason to be worried about what Roberts might do on the highest bench.

The next day at the hearings, Sen. Joe Biden took a swing at Roberts' umpire analogy:

As you know, in major league baseball, they have a rule. Rule two defines the strike zone. It basically says from the shoulders to the knees. And the only question about [umpires] is: Do they have good eyesight or not? They don't get to change the strike zone. They don't get to say, "That was down around the ankles and I think it was a strike." They don't get to do that.

But you are in a very different position as a Supreme Court justice. As you pointed out, some places of the Constitution defines the strike zone. Two-thirds of the senators must vote. You must be an American citizen ... to be president of the United States -- I mean born in America to be a president of the United State. The strike zone is set out. But as you pointed out in the question to Senator Hatch, I think, you said unreasonable search and seizure. What constitutes unreasonable?

So, as much as I respect your metaphor, it's not very apt, because you get to determine the strike zone. What's unreasonable? Your strike zone on reasonable/unreasonable may be very different than another judge's view of what is reasonable or unreasonable search and seizure.

And the same thing prevails for a lot of other parts of the Constitution. ... All of the things that we debate about here and the court debates that deserve 5-4 decisions, they're almost all on issues that are ennobling phrases in the Constitution, that the founders never set a strike zone for. ... So, Judge, you're going to be an inferrer, not an umpire. Umpires don't infer. They don't get to infer. Every justice has to infer.

Biden had hit it out of the park: Roberts, like other justices, would be setting the strike zone, not merely calling pitches. Though Roberts would go on to be confirmed on a 78-22 vote -- Biden voted nay -- this back-and-forth was an edifying dialogue. As Kagan's confirmation hearings start, the odds are that there won't be headlines-grabbing excitement or political pyrotechnics. But a pretty good moment is always possible.

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1 Comment

With all this hype about whether Kagan is a conservative or a liberal should make absolutely no difference, what the confirmation process should concern themselves with is will she determine a case based on the CONSTITUTION rather than her political bias. Or does she consider the views of the person who nominated her in the forthcoming opinions. Keeping the supreme court independent at this point has been unsuccessful, and will remain so as long as articles like this are published ad infinitum.